The United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated the rights of John M. Berry Jr. who was threatened with an ethics charge after criticizing the state Legislative Ethics Commission. In an important victory for free speech, the panel found that the bar violated the first amendment rights of the attorney.
The bar sent Berry a warning that his criticism of a state judge could result in punishment for lawyers who make reckless or false comments about judges. We have previously discussed the trend of cases where lawyers have been charged over their criticism of judges. I have been critical of those cases on first amendment grounds.
Barry challenged the integrity of a ruling dismissing an ethics complaint against Senate President David Williams. Here is the set up by the panel on the facts:
John Berry, an attorney, attended a public session of the Kentucky Legislative Ethics Commission regarding alleged fund-raising violations by Senate President David Williams. Berry was unhappy with how the session was conducted—the Commission closed the session to the public but allowed Williams to remain—and Berry drafted a letter expressing his displeasure. The letter stated that the Commission’s procedures could cause the public to think that the “deck was stacked.” The Commission complained of the letter to the Kentucky Bar Association’s Inquiry Commission. After investigating the matter, the Inquiry Commission issued a letter warning Berry that his conduct violated Kentucky Rule of Professional Conduct 8.2(a), and advising him to refrain from similar conduct in the future. After exhausting his state remedies, Berry brought this First Amendment challenge to Rule 8.2(a). The district court granted summary judgment for the KBA. This decision was improper because Rule 8.2(a) is unconstitutional as applied to Berry’s speech.
What is astonishing is that the letter has raised a valid point in relatively moderate language. On October 5, 2007, Berry wrote:
The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order . . . that exonerated him, was contrary to the undisputed evidence that was presented.
It is astonishing that any bar official would consider such a letter to be worthy of a referral, let alone possible punishment. What is even more astonishing is that the Bar President and counsel would persist in litigating this case — asserting the right to punish lawyers for speaking out in the public interest.
The panel drew a distinction between opinion and false statements:
An opinion can “be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Yagman, 55 F.3d at 1438–39 (citing Milkovich, 497 U.S. at 21)). An opinion relies on implied facts where a speaker utters an opinion without providing the underlying factual basis. Take, for example, a statement by A to B, “‘I think [C] must be an alcoholic.’ A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.” See Restatement (Second) of Torts § 566, cmt. c, illus. 3. If A has no factual basis to support the assertion, then the statement would be actionable even if couched as A’s opinion. See Yagman, 55 F.3d at 1439.
Notably, the Yagman case involved a far more serious and pointed criticism but was found protected by the first amendment. In that case, an attorney was sanctioned by a judge and went public with a claim that the judge “has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-[S]emitism.” Id. The court found that the three lawyers mentioned were in fact Jewish and that the lawyers were all sanctioned by the judge. The court found that charge of anti-Semitism was an opinion that was based on stated facts of the religion of the attorneys and their being sanctioned.
Notably, the panel reserved judgment on even more serious or offensive comments by lawyers: “We also take no position on the constitutionality of sanctioning a lawyer’s profanity or threats directed against the courts, or other examples of a lawyer’s unmitigated expression of disrespect for the law, even outside the courtroom. Nothing like that was going on in this case.”
This type of prosecution has occurred more often in other countries. I have spoken on multiple occasions to Kentucky bar groups and I have always found the state to be the home of truly outstanding lawyers, including our friend Frank Mascagni. I am for that reason astonished by the lack of judgment shown in this litigation by bar officials. While the Kentucky Bar Association President W. Douglas Myers said the bar would accept the judgment, a more welcomed response would have been an apology on the part of the bar.
Here is the opinion: 12a0231p-06
To access this article and to read the many comments from lawyers across the country go to: www.jonathanturley.org